The rights to fatherhood under the ECHR and Maltese law in abortion cases

Abstract

The European Convention on Human Rights safeguards the right to life and not the right to abort. The European Court of Human Rights (ECtHR) does not treat abortion as a basic human right. The father has often been considered a silent party in the abortion debate in Malta, with most discussions focusing on the rights of the woman and those of the unborn child. The ECtHR in X vs the UK held that the father could be considered a ‘victim’ of the mother’s decision to abort. According to Maltese law, nothing precludes the father from protecting the life of his unborn child which includes the locus standi to open the case before the Court. The father may also seek damages against the woman who aborted his unborn child under the law of tort and contract. Furthermore, he may plead a breach of the right to life of the child. A suggestion to ensure that the rights to fatherhood can be further safeguarded under the laws of Malta would be to legalise abortion in instances wherein the right to life of the woman is endangered, thereby legalising abortion according to the double effect principle.